MANAGING FLOODS OF THE FUTURE: CONCEPTS, TOOLS & SUCCESS STORIES Iowa Post-Disaster Workshops November 12 & 13, 2008 Cedar Falls & Iowa City, Iowa Sam Riley Medlock, CFM, JD ASFPM Policy & Partnerships Program Manager
MANAGING FLOODS OF THE FUTURE Association of State Floodplain Managers Who we are, what we do, why we re here Community Liability & Floods Basics & current state of the law Managing community liability No Adverse Impact Flood Risk Management How NAI risk management can prevent loss & reduce liability But first, a friendly disclaimer
MANAGING FLOODS OF THE FUTURE This presentation addresses general principles of law and does not constitute legal advice. For legal advice, please see a lawyer licensed in your jurisdiction.
ASSOCIATION OF STATE FLOODPLAIN MANAGERS The mission of ASFPM is to promote education, policies, and activities that mitigate current and future losses, costs, and human suffering caused by flooding, and to protect the natural and beneficial functions of floodplains all without causing adverse impacts.
ASSOCIATION OF STATE FLOODPLAIN MANAGERS What s missing? NORFMA MT MN WI MI NY RI FMA AZ UT CO NM TX NE KS OK IA MO AR LA MS IL IN OH VA KY NC SC AL GA MD NJ 14,000 members 27 Chapters State Associations & Pending Chapters FL
FLOOD RISK MANAGEMENT: ROLES So, who manages flood risk, anyway? Federal Role National Flood Insurance Act FEMA, Corps, EPA & other federal agencies National Flood Insurance Program State Role Local Role Personal Role
FLOOD RISK MANAGEMENT: ROLES So, who manages flood risk, anyway? Federal Role State Role State Floodplain Managers State Land Use Programs & Policies State Emergency Management Cooperating Technical Partners Local Role Personal Role
FLOOD RISK MANAGEMENT: ROLES So, who manages flood risk, anyway? Federal Role State Role Local Role Development Standards & Review Permitting & Codes Enforcement Local Emergency Management Programs Community Rating System Personal Role
FLOOD RISK MANAGEMENT: ROLES So, who manages flood risk, anyway? Federal Role State Role Local Role Personal Role Risks & Decisions Information & Preparation Responsibility & Expectations
COMMUNITY LIABILITY: THE LAW Federal Law U.S. Constitution Flood Control Act of 1928 Federal Tort Claims Act of 1946 National Flood Insurance Act of 1968 State Law State Constitutions State Legislation
COMMUNITY LIABILITY: THE LAW U.S. Constitution & 5 th Amendment Takings [N]or shall private property be taken for public use, without just compensation. Eminent Domain Regulatory Takings 5 th Amendment & Flood Risk Management
COMMUNITY LIABILITY: THE LAW Flood Control Act of 1928 [N]o liability of any kind shall attach to or rest upon the United States from any damage from or by floods or flood waters. U.S. v. James 478 U.S. 597 (1986) Cent. Green Co. v. U.S. 531 U.S. 425 (2001) Katrina Litigation
COMMUNITY LIABILITY: THE LAW Federal Tort Claims Act of 1946 Negligence Discretionary Function Exception Key Cases Dalehite v. United States 346 U.S. 15 (1953) U.S. v. Gaubert 499 U.S. 315 (1991)
MANAGING COMMUNITY LIABILITY Myths & Realities If I can t build it, then you took it. NFIP minimum standards are enough. Higher standards will result in takings, making us liable to landowners and developers. No community has ever been held liable for issuing a permit.
MANAGING COMMUNITY LIABILITY Local officials and the communities they serve are far more likely to be successfully sued for permitting development that causes harm than for preventing it.
NO ADVERSE IMPACT (NAI) No Adverse Impact Flood Risk Management Sic utere tuo ut alienum non laedas So use your own as not to injure another s property.
NAI FLOOD RISK MANAGEMENT
NO ADVERSE IMPACT (NAI) NAI is a PRINCIPLE that leads to a PROCESS that is legally acceptable, non-adversarial, understandable, and palatable to the community as a whole. - Edward A. Thomas, Esq.
NAI FLOOD RISK MANAGEMENT How to follow the No Adverse Impact principle: Identify ALL the impacts of a proposed development Determine ALL the properties which will be impacted Notify impacted persons of the impact of any proposed development
NAI FLOOD RISK MANAGEMENT How to follow the No Adverse Impact principle: Design or re-design the project to avoid adverse impacts Require appropriate mitigation measures acceptable to the community & the affected members of the community
NAI & THE COURTS There has been a huge increase in taking issue cases & related controversies involving development Common thread? Courts have modified Common Law to require an Increased Standard of Care as the State of the art of hazard management has improved
NAI & THE COURTS Hazard based regulations successfully held to be a taking almost none! Many, many cases where communities & landowners held liable for harming others
NAI & THE COURTS Gove v. Zoning Board of Appeals 444 Mass.754 (2005) Massachusetts Supreme Judicial Court
The Gove site
GOVE V. ZONING BOARD OF APPEALS It is undisputed that [lot 93] falls within a floodplain, and that its potential flooding would adversely affect the surrounding areas if the property were developed with a house. Reasonable government action mitigating such harm... typically does not require compensation.
WHY CHATHAM WON: Bylaw designed to protect people & property Allows for alternative uses Bylaw fair & consistently applied Testimony of risk to emergency workers Town willing to defend itself
NAI FLOOD RISK MANAGEMENT Higher Standards Informed Public Cooperative Relationships
NAI FLOOD RISK MANAGEMENT Higher Standards Freeboard & Setbacks Integrated water resource management Know & manage community risk
NAI FLOOD RISK MANAGEMENT Integrated Planning
NAI FLOOD RISK MANAGEMENT Integrated Resource Management Land Use Flood Risk Stormwater Infrastructure Critical Facilities
NAI FLOOD RISK MANAGEMENT Informed Public Know & manage your personal risk Work for the best & prepare for the worst
NAI FLOOD RISK MANAGEMENT Informed Public Understanding risk and vulnerability
NAI FLOOD RISK MANAGEMENT Informed Public Managing risk and vulnerability
NAI FLOOD RISK MANAGEMENT Cooperative Relationships Know and work with your neighbors
LAWS & NATURE FAVOR THE PREPARED
YOU ARE NOT ALONE
WHAT WILL BE YOUR LEGACY?
WHAT WILL BE YOUR LEGACY?
WHAT WILL BE YOUR LEGACY?
WE CAN HELP! Regional, state & national teams work To define, communicate & manage risk Promote sustainable land use and practices Prevent future flood disasters